Marvel Civil War IV: The Draft and Posse Comitatus

Continuing our series on Marvel’s Civil War event, we come to the issue of whether or not the SHRA amounts to a kind of conscription. We briefly discussed the draft and the SHRA in the comments to an earlier Civil War post, and conscription was discussed in a Mailbag a while back. We concluded there that drafting particular people, even on a named-individual basis, may be within congressional authority under the Constitution. But turning to the issue of the SHRA, we run into problems. Specifically, because the SHRA and related Initiative are pretty clearly intended to promote domestic security, and operate almost entirely within US borders, the Posse Comitatus Act comes into play.

The Act was passed in 1878 in the aftermath of Reconstruction, which followed the actual American Civil War. The thrust of the Act is that the United States armed forces—Army, Navy, Air Force, and Marines (the Coast Guard is excepted by case law)—are significantly limited in their ability to conduct operations on US soil. There have been very, very few times when the federal government has used actual soldiers to carry out its will on US soil.

Perhaps the most famous such event was when President Eisenhower ordered the 101st Airborne Division of the US Army to provide an armed escort for the Little Rock Nine, in one of the most dramatic incidents in the fight for public school integration during the late 1950s. Eisenhower also federalized the Arkansas National Guard, because then-governor Faubus was using it to attempt to block the integration of the schools. But it was really only the intervention of the governor that provoked this kind of armed federal response. Congress and the President have significant constitutional authority to use the National Guard and even the regular army to put down “insurrection,” and a state governor’s open, armed defiance of federal law surely counts. This power derives from the Insurrection Act, which gives the President the authority to use the regular army to put down insurrection and lawlessness.  The Act is in turn derived from Congress’s constitutional power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  The Insurrection Act was also invoked to quell the 1992 Los Angeles riots.

Apart from those incidents and the Civil War, the number of times the regular army has been deployed on US soil is pretty low. This is because the Posse Comitatus Act prohibits the domestic use of US soldiers without the express authorization of Congress. The Insurrection Act is one such authorization, but any circumstance which falls outside that mandate will require additional legislation, either dealing with a specific situation or creating a broader grant for a particular kind of activity.

In fact, in the real world, shortly after the Marvel Civil War event began, Congress passed an amendment to the Insurrection Act that would arguably authorize the use of the federal armed forces to deal with the threat of supervillain violence.  The 2006 amendments to the Act give the President the power to 

employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a … terrorist attack or incident, or other condition …, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and such violence results in a condition that … so hinders the execution of the laws of a State or possession … and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In the wake of the Stamford Disaster it could be argued that a “terrorist incident or other condition” had occurred, the regular state authorities were incapable of maintaining public order, and the level of violence rose to the level of depriving people of their rights.  This broader authority under the amended Insurrection Act may authorize the Initiative’s activities, but it would not authorize the registration and conscription parts of the SHRA.  Thus, the SHRA would still have to be passed, and so it would make sense to include a more specific authorization for the Initiative rather than relying on the Insurrection Act.  Note, though, that the 2006 amendments were later repealed.  They were in force during most of the Civil War event, however.

It’s worth pointing out that the National Guard, as such, is really under the control of the respective states. The Guard has a close relationship with the regular armed forces, operates on a federal level under the Department of Defense, and is composed largely of inactive or reserve federal soldiers, but remains distinct from the regular army in that it answers ultimately to state governors, not the President, unless the President exercises his constitutional authority to take control of the Guard. Most notably, one cannot be drafted into the National Guard. Congress cannot draft people into state agencies, and though the states can theoretically mandate some kind of conscription into their own services, none have tried.

The issue with the SHRA is that if the Initiative is an activity of the US military, it runs into the Posse Comitatus Act, and if it is not, it is far from clear that Congress could use the draft to staff it. Again, while Congress has broad authority to conscript men into the military, that authority is limited to the military, as it is an implied power of Congress’s explicit ability to raise armies. If conscripts are not to be used for the army, the conscription power would not seem to apply.

How can one get around this seeming catch-22? Well, one could posit that the SHRA included specific authorization for the Initiative, which would meet the requirements of the Posse Comitatus Act. Remember, the Act does not say that the Army cannot be used on US soil, it says that the Army cannot be used on US soil without congressional authorization, which Congress is naturally free to grant. However, one wonders just how popular such a move would be given that the immediate justification for the SHRA was the Stamford Disaster, in which a bunch of superheroes acting irresponsibly resulted in the destruction of an elementary school. Subsequent stories indicate that the Initiative remains far from popular, and the Initiative training camp seems to be subject to organized protest just about around the clock. One can imagine that congresscritters would be reluctant to deviate so strongly from established US custom, particularly in light of popular opposition. The SHRA itself is frequently said to be popular, but the Initiative somewhat less so.

Some of the uncertainty here stems from the general confusion surrounding the SHRA itself. But the Posse Comitatus and related draft issues seem to be something that the writers could have gotten right if they’d wanted to. Congress is entirely free to authorize military action on US soil, and given that superhero teams would probably be limited to fighting problems which require their particular talents, one can see how certain members of Congress could think that would be a good idea. Whether or not there would be enough support for that provision to pass it is an open question, but it would have made this aspect of the Civil War even that much more consistent.

20 Responses to Marvel Civil War IV: The Draft and Posse Comitatus

  1. Melanie Koleini

    “Well, one could posit that the SHRA included specific authorization for the Initiative, which would meet the requirements of the Posse Comitatus Act… One can imagine that congresscritters would be reluctant to deviate so strongly from established US custom, particularly in light of popular opposition.”

    Couldn’t an amendment authorizing the Initiative have been slipped in when the bill was sent to the conference committee? I’m always hearing about provisions in laws that no one will admit to adding to the bill. This year’s budget included a provision removing wolves from the endangered species list. At least the Initiative is somewhat related to what SHRA was suppose to do.

  2. Martin Phipps

    “There have been very, very few times when the federal government has used actual soldiers to carry out its will on US soil.”

    Well, you mentioned the actual Civil War (1861–1865) . What about when the U.S. annexed Texas in 1845 and then fought a war with Mexico from 1846 to 1848? And before that there was the war of 1812 which actually ran from1812 to 1814. In modern times American soldiers have not been expected to fight on American soil but that has not always been the case. Indeed, in the comics, the United States has faced threat from Hydra and Hydra, or their leaders at least, have consisted of foreign nationals like the Red Skull or Baron Von Strucker who were almost certainly living in the U.S. illegally.

    I don’t think you can talk about S.H.I.E.L.D, the Initiative, the SHRA or the Posse Comitatus Act in the Marvel setting without acknowledging that there was and has been a very real threat from HYDRA. Granted, in the real world we have Al Queda but Al Queda doesn’t have bases operating in the U.S., at least not overtly military ones, nor do Al Queda operatives wear uniforms or drive tanks through New York City (as Hydra did back in Daredevil #121). I think that if in the real world an armed group of people were to drive tanks down the streets of New York then it would be considered either an insurrection or a foreign attack depending upon the nationality and/or residency of Hydra members. Given the frequency of supervillain attacks in the Marvel Universe, it wouldn’t surprise me if their politicians used the same sort of rhetoric that they use in the real world (“drug war”, “war on terror”) and declared a standing “war on supervillain activity” that would make it easier for groups like S.H.I.E.L.D. and the Avengers to operate on U.S. soil.

    • Ryan Davidson

      The two examples you mention were actual wars with foreign powers. There’s no constitutional restriction on the use of federal troops in those contexts, location or otherwise.

      HYDRA is… not handled very well in the comics. I don’t seem to remember reading any real reason why the US doesn’t just invade, or why a formal declaration of war was never issued. Heck, given that the organization was started (or re-started, whatever) by Japanese ultranationalists and seized by former Nazis, I don’t know why the declarations from WWII wouldn’t still be effective. But I haven’t come across a story that fleshes them out to any real extent, so I can’t comment beyond that.

      • Martin Phipps

        Would it help if we were talking about COBRA? The GI Joe comics were also published by Marvel. Hasbro told Marvel that they didn’t want GI Joe characters interacting with Marvel characters so the GI Joe comics feature COBRA, not HYDRA. By analogy then the GI Joe organization is actually SHIELD and in that case we actually have a movie that explains (or tries to explain) how the organizations work.

      • Errr….invade what?

        Hydra is not a country- it is an international criminal organization based in numerous hidden locations throughout the world. Yes, it was started in Japan by ultranationalists and Nazi’s, but that doesn’t mean you can hold Japan responsible for what Hydra does, any more than Japan could hold the United States responsible for, say, the Sicilian Mafia bombing Tokyo (for whatever reason). They could declare war on Hydra, but that would mean giving it political legitimacy that it doesn’t deserve.

    • In addition to Davidson’s point, both the Mexican-American War and the War of 1812 took place well before the American Civil War and Reconstruction. Even if there had been some conflict against a force other than a foreign nation (which generally includes First Nation tribes*) it still wouldn’t have run afoul of an act that wouldn’t be passed until the late 1870s.

      *Or American Indians or Native Americans or many other different names used arbitrarily.

  3. Here’s an interesting thought, could the 2006 amendments to the Insurrection act (before it was repealed) have been used to allow the military take over of San Fransisco over the whole Sanctuary City anti-federal immigration laws thing?

  4. “It’s worth pointing out that the National Guard, as such, is really under the control of the respective states. ”

    In theory, yes. While the states do retain sufficient administrative authority over the units to maintain the fig leaf, in reality the bulk of the administrative authority and full operational command has long since been handed over to the DoD. They’re an active reserve and well integrated into the active forces (and have been for years), not the inactive reserve and home guard they’re popularly believed to be. (That’s why they’ve been deployed to Iraq and Afghanistan, something you can’t do with inactive forces.)

  5. (Can’t edit a comment dangit… hit the button too early…)

    Another thought: They can’t be drafted into the military because of Posse Comitatus – but could they be forcibly deputized into one of the Federal law enforcement agencies?

    • Ryan Davidson

      You misunderstand. Superheroes probably could be drafted into the military, but deploying them on US soil would be problematic because of the Posse Comitatus Act. But they probably could not be forcibly deputized, as Congress does not seem to have the authority to draft anyone into anything other than the military.

  6. There are numerous exceptions to Posse Comitatus.
    * The Insurrection Act of 1807 codified in 10 USC 331 et seq.; Section 332 would appear directly to pertain to the Marvel Civil War
    * In the case of nuclear materials, 18 USC 831 permits the AG to ask for help from DoD; were some of Captain America’s allies in the Civil War nuclear-powered?
    * Posse Comitatus 18 USC 1385 refers only to the Army and Air Force, not the Navy or Marines ( See http://www.history.navy.mil/library/online/posse%20comit.htm#apply) and one most definitely may be drafted into either.

    • “Posse Comitatus 18 USC 1385 refers only to the Army and Air Force, not the Navy or Marines”

      As we discussed the last time we talked about the PCA, the courts have held that “the Posse Comitatus Act applies to the Navy through section 375 and 32 C.F.R. § 213.10.” United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994) (NB: it’s now under 32 CFR 215). The Marines are presumably similarly included. The Coast Guard, however, is not. See Jackson v. State, 572 P.2d 87 (Alaska 1977).

      “Section 332 would appear directly to pertain to the Marvel Civil War”

      That might work for dealing with the Civil War itself (i.e. the violent conflict between pro-reg and anti-reg superheroes), but it wouldn’t justify the Initiative in the first place. It’s a curious situation in which a violation of the PCA leads to a violent rebellion that justifies invoking an exception to the PCA.

      “I left out JSOC – which would fit most superhero teams – not covered by Posse Comitatus at all”

      As part of the DoD JSOC is covered by 32 CFR 215, which speaks generally of “the employment of DoD military resources.”

    • Martin Phipps

      Before you ask, Luke Cage sitting at home alone waiting for the police to come arrest him because he let the deadline for registering in compliance with the SRA pass is not an insurrection. It was civil disobedience. What happened in issue six of Civil War with Captain America et al taking the offensive against Iron Man et al could be considered an insurrection but, then again, you could argue that the whole Civil War was a personal matter between Cap and Iron Man and not an actual strike against the government.

      • Ryan Davidson

        Remember, the fact that the SHRA promoted what might plausibly be called insurrection is not justification for the Act itself. So the events of the Civil War stories cannot be used to ground a use of military force in the SHRA unless the SHRA specifically authorizes it. Which it could, but that wasn’t mentioned in the stories.

  7. Oh, and I left out JSOC – which would fit most superhero teams – not covered by Posse Comitatus at all. Traditionally JSOC is a volunteer effort but, as you note, Congress could draft into it.

  8. “the Posse Comitatus Act applies to the Navy through section 375 and 32 C.F.R. § 213.10.”

    Ahem. Section 375 etc authorizes SecDef to prescribe regulations putting the Navy etc under Posse Comitatus; these regulations may be modified or rescinded without action by Congress and there is no statutory violation if such is done. The case(s) you cite argue naught to the contrary.

    Surely it would have been better for Marvel to include a scene in which SecDef issued such a recission. Indeed, comics in general would be vastly improved with a greater emphasis on people sitting at desks typing regulations, and less of this messy flying around and smashing things.

    As to Luke Cage, one man’s civil disobedience is another man’s rebellion or insurrection. Certainly I have no sympathy for Iron Man’s fascist tendencies, but the entire Civil War saga is built upon this moral ambiguity in the face of clear law. It may not be the case in our universe, but in Earth-616 law and morality are at times in conflict.

    • Generally sitting around at home and deliberately not registering for something is not considered a rebellion or insurrection and it would amusing trying to convince a room of jurors otherwise.

  9. “Congress cannot draft people into state agencies, and though the states can theoretically mandate some kind of conscription into their own services, none have tried.”

    In Tennessee, the Sheriff of a county and the State Police (“highway patrol”) have the legal power to conscript men to fight a wildfire, and failure to respond to such a summons is a Class C Misdemeanor.

    Per http://www.burnsafetn.org/pdfs/firelaws.pdf :

    “68-102-145. Sheriffs and highway patrol
    officers to prevent spread of forest fires –
    Punishment for refusing aid.
    (a) It is the duty of various county sheriffs and likewise of the state highway patrol officers to use all effective methods in their power to prevent the spread of forest fires. Whenever the various sheriffs or any member of the state highway patrol shall become aware of the fact that there is a forest fire in the vicinity, such officer shall be under the duty of summoning a sufficient number of the male citizens of the county in which the fire is burning, who are between eighteen (18) and thirty (30) years of age, to control the fire, and the officer shall be in complete charge and direction of the efforts to restrain such fire until duly relieved by division of forestry personnel.
    (b) Any person who, after being duly summoned by the officer to aid in the suppression of the fire, willfully refuses to act in the premises commits a Class C misdemeanor.”

    So there is precedent for conscription, albeit for the length of a specific emergency.

  10. Pingback: The Avengers: S.H.I.E.L.D. | Law and the Multiverse

  11. Pingback: Under the Dome | Law and the Multiverse

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>